Weekly Case Summaries: January 30, 2009

The United States Supreme Court

Van de Kamp et al. v. Goldstein

1/26/09 : Docket No. 07-854 : Prosecutorial Immunity

Issue

Does prosecutorial immunity extend to civil claims alleging a failure to establish policies guaranteeing criminal defendants' constitutional rights, or are those actions administrative and therefore eligible for only qualified immunity?

Holding

Yes, absolute immunity applies. Prosecutors involved in supervision, training or even information-system management are to be afforded complete immunity from legal claims based on those administrative obligations. Practically, it would be difficult to draw a line between general office supervision or office training and specific case-related supervision or training. Allowing claims based on the former would certainly allow plaintiffs to bring claims on the latter, which would impede the system's need for a fair and efficient prosecutor's office. Read opinion.

Commentary

Last week, we praised Justice Ginsburg for saving judicial stacking. This week, we praise Justice Breyer for saving absolute immunity for supervising and elected prosecutors. That is wacked. And this is a unanimous opinion reversing yet another Ninth Circuit Court of Appeals opinion. Prosecutors, though, should not take this as an excuse for slacking off on training and policymaking. TDCAA continues to have an important training mission that remains the key to improving how we all do our jobs.

Texas Court of Criminal Appeals

Ex parte Hernandez

1/28/09 : Cite No. AP-75,933 : Time Credit on Sentence

Issue

Was the defendant entitled to credit on his robbery sentence for time spent on parole for unauthorized use of a motor vehicle?

Holding

No. Under Government Code §508.283(c) (sanctions) a defendant released on parole or mandatory supervision is not entitled to credit for "street time" on his original sentence if, after his release but before his revocation, he began serving a sentence on a new conviction for an offense described by Government Code §508.149(a) (inmates eligible for mandatory supervision). Read opinion.

Dissent

Judge Johnson wrote that she did not agree with the majority's interpretation of the phrase "is serving a sentence for." She would hold that the phrase refers only to the sentence on which the applicant is seeking street-time credit. Read dissent.

Concurrence

Commentary

There have been more than a few opinions over the last year or so dealing with time credits. Pretty tricky stuff and only interesting to those postconviction wonks who answer writs. Still, it's good to see that this defendant doesn't win the time credit lottery after committing a new felony crime while out on parole.

Wasylina v. State

1/28/09 : Cite No. PD-0519-07 : Lesser Included Offenses

Issue

Was the evidence legally sufficient to support the defendant's conviction for criminally negligent homicide where the evidence showed only that he acted recklessly?

Holding

Yes. Proving the greater culpable mental state of recklessness necessarily proves the lesser culpable mental state of criminal negligence. The submission of a lesser-included offense does not violate the defendant's constitutional due-process right to notice of the crime of which he is accused. Read opinion.

Concurrence

Judge Price concurred. Because a jury acquitted the defendant of reckless homicide does not necessarily mean the evidence was legally insufficient to support that verdict. It may only mean that the particular jury had a higher threshold of reasonable doubt than other, equally rational juries may have had. He wrote that the court incorrectly concluded the defendant cannot be re-tried for the lesser-included offense of criminally negligent homicide because of a lack of evidence to support such a conviction. The evidence in this case is sufficient under Penal Code §6.02(e).Read concurrence.

Concurrence

Judge Johnson concurred and wrote that a rational jury could have found the victim's death an accident caused by his own actions and an equally rational jury would have sufficient evidence to find that the defendant failed to appreciate a substantial and unjustifiable risk and so was guilty of criminally negligent homicide. Read concurrence.

Dissent

Commentary

This is a weird case. Defendant shot a guy in the forehead with a .357 magnum handgun and got five years probation for criminally negligent homicide. Yet, he complains that even that was too much. The court of appeals twisted a number of legal issues to say that he should be acquitted, even though he only complained about the submission of a lesser-included offense to the jury. The CCA opinion may not end the dispute because the case was only remanded for reconsideration, giving the court of appeals another shot at saying the evidence was insufficient. And if a retrial occurs, the State may yet get another shot at pen time.

Sanchez v. State

1/28/09 : Cite No. PD-0094-08 : Sufficiency of Evidence

Issue

In the defendant's conviction for the Class B offense of possession of less than 28 grams of a Penalty Group 4 controlled substance (codeine), was the State's evidence that the defendant possessed the codeine mixture sufficient when no numerical concentration was assigned by the testifying chemist to the nonnarcotic ingredient (promethazine) in the mixture?

Holding

Yes. A jury could have reasonably inferred that the promethazine was present in sufficient quantities to give the compound valuable medicinal qualities apart from the codeine because the syrup contained both. The chemist testified that promethazine possessed valuable medicinal qualities apart from the codeine as an anti-inflammatory and a cough suppressant, and promethazine is often prescribed by physicians. Read opinion.

Concurrence

Presiding Judge Keller agreed that there was sufficient evidence to show the proper proportion of promethazine, but found another problem with the defendant's argument. In the absence of cough medicine in the proper proportion, the defendant would be guilty of a greater offense rather than a lesser one because one element of the Penalty Group 1 offense negates a mitigating factor: the status of belonging to Penalty Group 4. Read concurrence.

Concurrence

Judge Johnson wrote that the State did not prove the element of the offense that requires a therapeutic level of promethazine. Read concurrence.

Commentary

Well, we should be impressed that the CCA took the time to educate the court of appeals on the meaning of expert testimony as to the ingredients in your basic Class B misdemeanor cough syrup case. (Is this the first CCA case with a footnote citing to Wikipedia? See footnote 7.)

State v. Gobert

1/28/09 : Cite No. PD-0202-08 : Miranda Rights

Issue

Was the defendant's Fifth Amendment right to counsel violated when during a custodial interrogation and immediately after he was read his Miranda rights, he made a statement that referenced his right to a lawyer and the interrogation continued?

Holding

Yes. While the defendant's request for counsel was not straightforward, that does not mean that he did not adequately communicate his desire to deal with the police detectives only through, or at least in the presence of, a lawyer. Under the circumstances, his statement that he did not want to "give up any right" without a lawyer may safely be assumed to be in response to the right to counsel mentioned by the officers. Read opinion.

Commentary

"I don't want to give up any right, though, if I don't got no lawyer." Street talk, apparently, for, "Hell, yeah, I want a lawyer." Nice footnote on how to disregard the double negative in today's vernacular (see footnote 24). No dissents on this one.

Rivas v. State

1/28/09 : Cite No. PD-1113-07 : Objection to Bolstering

Issue

In the defendant's trial for multiple counts of child sexual assault, did the trial court incorrectly overrule his objection that testimony of the SANE who examined the child complainant constituted bolstering of that child's later testimony?

Holding

Yes. Reference to a rule of evidence might save an objection that may otherwise be obscure, but an objection is not defective merely because it does not identify a particular rule. The issues were discussed by both attorneys during the trial and the judge made rulings several times. No aspect of the child's declarations had been impeached prior to the State's questions, and her declarations in the SANE examination were consistent with her prior testimony, if not more detailed and complete. Read opinion.

Commentary

Sorry, but sympathies are with the trial judge who had to listen to the "bolstering" objections coming out the defendant's mouth. Several times, the judge patiently seemed to be trying to understand just what in the world the defendant was saying. Contrary to Judge Womack's unanimous opinion, it doesn't really seem like the defendant used "plain English". Still, it wouldn't have hurt for the court of appeals to simply deal with the merits, perhaps filling in a few blanks for the defendant.

Texas Courts of Appeal

Taylor v. State - 1st COA

Issue

In the defendant's trial for three counts of aggravated sexual assault of a child, did the trial court improperly fail to limit the jury's consideration of the defendant's actions before he turned 17 and violate Penal Code §8.07(b) (Age Affecting Criminal Responsibility) by authorizing the jury to convict him based on acts committed before his 17th birthday?

Holding

Yes. The defendant was deprived of his right to be prosecuted for and convicted of only those offenses for which he is criminally responsible under Texas law. Read opinion.

Commentary

This should have been found harmless, as the jury obviously believed the defendant committed all of the sexual misconduct, before and when the defendant was an adult. Perhaps before retrial the State will consider certifying the defendant as an adult for the conduct that occurred when he was a juvenile. Then, on retrial, the jury can once again hear all of the conduct and convict for the multiple, ongoing abuse. And then stack the sentences.

Stevens v. State - 14th COA

1/27/09 : Cite No. 14-07-00291-CR : Plea Admonishments

Issue

Did the trial court improperly fail to admonish the defendant about the possible deportation consequences of a guilty plea?

Holding

Yes. Normally, under Code of Criminal Procedure art. 26.13, if the record shows that the defendant is a United States citizen, the trial court's failure to admonish him regarding the immigration consequences of his guilty plea is harmless error. If the record shows that the defendant was not a citizen at the time of his guilty plea, then the failure to admonish is harmful. If the record is silent as to his citizenship or if the record is insufficient to determine his citizenship, the trial court's error in failing to give him the immigration admonition is harmful. This record is silent on the matter and it must be inferred that he did not know the potential repercussions of his plea. Read opinion.

Commentary

Would it be so terrible to abate and remand the case for a hearing before the trial court to determine if the defendant is a U.S. citizen? Why should he get a pass if he is not a noncitizen? Still, it's not so hard to follow the law and give the statutory admonishments for a guilty plea, even when the plea is to a jury. This still happens too often. (See TDCAA's The Perfect Plea for a form.)

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